Officials to blame for spy law blunder - Finlayson

Former NZSIS Minister Chris Finlayson says he went through new spy legislation "clause by clause" with officials to uncover any problems. Photo: Lynn Grieveson.

Former spy minister Chris Finlayson has thrown government officials under the bus for a blunder which deprived Kiwi spooks of visual surveillance tools, saying they would have been to blame had a terrorist attack occurred.

NZ Security Intelligence Service (NZSIS) documents obtained by the NZ Heraldrevealed a legislative error last year meant the agency was unable to apply for visual surveillance warrants, or use their emergency powers for warrantless surveillance.

In a June 30 briefing to Finlayson, NZSIS director Rebecca Kitteridge said the gap in powers was the result of the transition period between the expiration of old legislation on April 1, 2017, and the enactment of the new Intelligence and Security Act from September 28 that year.

The repeal of the old legislation meant the NZSIS was left without the ability to issue visual surveillance warrants “to detect, investigate or prevent a terrorist act”, Kitteridge said.

A handwritten note from Finlayson on the document gave some hint of his displeasure, informing Kitteridge the NZSIS would “not be seeking a legislative solution AT ALL”.

“Don’t even bother asking. This should have been covered in the transitional provisions.”

A later briefing obtained by the NZ Herald suggested the Department of Prime Minister and Cabinet (DPMC) was to blame for the oversight, as it prepared the drafting instructions for the new legislation.

Kitteridge told the NZ Herald she had not been seeking a legislative fix, and the agency had other tools to overcome the lack of visual surveillance powers.

"I don't think any of us thought it was ideal … but it was what it was. Obviously it wasn't ideal. We were very pleased and relieved when (the new law) came into force on the 28th of September.”

Speaking to media on Tuesday morning, Finlayson said he opposed an urgent law change due to the lack of time between the discovery of the blunder and the general election, coupled with criticism of his government’s previous use of urgency for intelligence laws and the drafting process for the new law.

“I had gone through that legislation, the draft legislation...clause by clause and I distinctly recall at the end of the meeting saying to people, ‘Right, state any further concerns or forever hold your peace, end of story’.”

There were “other mechanisms” that could have been used to cover the lack of visual surveillance powers, he said.

While the NZSIS had not explicitly raised the prospect of an urgent legislative fix, he believed Kitteridge’s briefings were “a precursor” to such a request.

Asked who would have been to blame had a terrorist attack occurred during the six months the NZSIS was without the powers, Finlayson replied bluntly, “They [the officials] would have been.”

Current NZSIS Minister Andrew Little backed Finlayson’s decision to oppose urgent legislation, and said he did not believe New Zealand had been markedly more vulnerable during the six-month period.

“The security and intelligence agencies have a number of means and mechanisms to keep tabs on people who are regarded as a risk: visual surveillance is one of them, but in the relatively short period of time that they didn’t have access to powers to do that they were able to cover their needs off through other means,” Little said.